Section 2A: Bureau of special education appeals; duties; director; supervision; standards for dispute resolution; confidentiality; hearing officers; memorandum of understanding; bureau of special education appeals advisory council
Section 2A. (a) There shall be a bureau of special education appeals which shall provide adjudicatory hearings, mediation and other forms of alternative dispute resolution as determined by the bureau of special education appeals for resolution of disputes between and among parents, school districts, private schools and state agencies concerning: (i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child arising under this chapter and regulations promulgated hereunder or under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq., and its regulations; or (ii) a student's rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, and its regulations. All such disputes shall be referred for resolution to the bureau of special education appeals in the division of administrative law appeals. The methods of alternative dispute resolution that may be provided by the bureau of special education appeals shall include those conducted by hearing officers including, without limitation, settlement conferences and advisory opinion procedures to facilitate efficient resolution of disputes for which a hearing has been requested before the bureau of special education appeals. The bureau shall be maintained and operated as a separate subdivision of the division of administrative law appeals and shall be independent of the department of elementary and secondary education. The division of administrative law appeals shall provide the following administrative support functions to the bureau on an integrated basis with the same administrative support functions of the division to the extent agreed upon in, and paid for pursuant to, the memoranda of understanding entered into under subsection (d): personnel administration; finance; facility operations; technology support; and clerical support.
The bureau shall be administered by a full-time director of special education appeals who shall be appointed by the chief administrative magistrate, in consultation with the commissioner of elementary and secondary education, and who shall report to the chief administrative magistrate. The director of special education appeals shall have operational authority over the bureau and all hearing officers and mediators, except as otherwise provided in this section. The chief administrative magistrate shall supervise the director. The director shall be an attorney with extensive knowledge and experience in the areas of litigation, administrative law and special education law. Before hiring a director, the chief administrative magistrate shall provide a reasonable opportunity for an interview committee consisting of not more than 5 of the bureau's hearing officers and mediators to interview finalists for the position and provide feedback to the chief administrative magistrate on such finalists. The chief administrative magistrate, hearing officers and mediators shall ensure that the names of all candidates are kept confidential.
The chief administrative magistrate and director shall ensure that the bureau and its hearing officers and mediators comply with the minimum standards established under laws, regulations and division policies as provided herein. The chief administrative magistrate and director shall have all powers necessary and proper for carrying out these responsibilities. Any decision to terminate the employment of the director shall be made by the chief administrative magistrate, in consultation with the commissioner of elementary and secondary education. The chief administrative magistrate and the director shall meet regularly to review the management and administration of the bureau, including compliance with federal timelines, quality standards, personnel and issues that arise with respect to the matters covered in the memorandum of understanding entered into pursuant to said subsection (d).
The department of elementary and secondary education shall retain responsibility for general supervision of the bureau as specified in and consistent with the Individuals with Disabilities Education Act, 20 U.S.C. sections 1400 et seq., and shall ensure compliance of the dispute resolution system with the federal act. The department shall perform all oversight necessary for carrying out these responsibilities. The department of elementary and secondary education may request and shall receive periodic reports necessary to respond to the reporting requirements regarding hearings and mediations of the federal act.
The board of elementary and secondary education may issue regulations establishing minimum standards for the dispute resolution system for special education, including minimum standards for the qualifications, competence and impartiality of hearing officers and mediators, and such other standards and requirements as necessary to ensure compliance with all applicable federal laws and regulations and quality standards. The director of special education appeals, in consultation with the chief administrative magistrate, may issue such rules and procedures as are necessary to carry out the bureau's functions; provided, however, that the director shall consult with the commissioner prior to the issuance of any such rules and procedures; and provided further, that all rules and procedures shall be consistent with applicable statutes, the board's regulations and the division of administrative law appeal's policies.
(b) The division of administrative law appeals shall protect the confidentiality of any personally identifiable data, information and records collected or maintained by the bureau consistent with the Individuals with Disabilities Education Act and other applicable state and federal laws and regulations.
(c) Hearing officers shall be hired by the director under the direction and supervision of the chief administrative magistrate. Hearing officers shall be knowledgeable and experienced attorneys who meet the qualifications and criteria set forth in 34 C.F.R. section 300.511(c) and any other regulations or applicable provisions of the Individuals with Disabilities Education Act and the board of elementary and secondary education regulations. Mediators shall be hired by the director under the direction and supervision of the chief administrative magistrate. Mediators shall be knowledgeable and skilled and meet the qualifications and criteria set forth in 34 C.F.R. section 300.506(b) and any other regulations or applicable provisions of the Individuals with Disabilities Education Act and board regulations. Those employees shall work exclusively on matters within the bureau's jurisdiction. The director shall not assign matters subject to the jurisdiction of the bureau to non-bureau hearing officers or other employees of the division; provided, however, that the director may, on a temporary basis, assign matters to hearing officers or mediators outside the bureau if necessary due to temporary caseload increases or temporary absences of bureau staff; provided further, that any such outside hearing officer or mediator shall meet the same standards and qualifications as required for bureau staff and shall only be assigned special education cases for the duration of such temporary assignment; provided further, that such temporary assignment shall not be for more than 6 months and the director shall make every effort to hire additional hearing officers and mediators if necessary to avoid assignment of matters to hearing officers or mediators outside the bureau; and provided further, that any such temporary assignments shall be reported to the bureau of special education appeals advisory council at least every 6 months.
(d) The commissioner of elementary and secondary education and the chief administrative magistrate of the division of administrative law appeals shall enter into a memorandum of understanding which may be amended from time to time. The director of special education appeals shall participate in the negotiations with regard to the memorandum and the commissioner and the chief administrative magistrate shall consider and make all reasonable efforts to incorporate the director's views in entering into the memorandum. The memorandum shall include, but not be limited to, the budget and staffing for the bureau; the range of dispute resolution options that the bureau will offer, including protocols and procedures to encourage prehearing dispute resolution; the allocation of the division's administrative support costs; the transfer of books, papers, records, documents and equipment from the department to the division; the transfer of outstanding contracts and obligations related to the bureau's activities from the department to the division; and the establishment of performance standards and measures for the bureau's activities. The department shall annually enter into an interagency service agreement with the division whereby the department shall provide funding for the bureau's operations as set forth in section 4H of chapter 7 and the memorandum.
(e) There shall be a bureau of special education appeals advisory council to consist of 1 person to be appointed by the speaker of the house of representatives and 1 person to be appointed by the president of the senate who shall act as co-chairs; 1 person designated by the Massachusetts Association of School Superintendents; 1 person designated by the Massachusetts Association of School Committees; 1 person designated by the Massachusetts Association of Special Educators; 1 person designated by the Federation for Children with Special Needs; 1 person designated by the Disability Law Center; and 1 person designated by the Massachusetts Advocates for Children. Pursuant to the department's responsibilities for the general supervision of the bureau, the commissioner of elementary and secondary education or his designee shall participate in meetings of the council. The council's duties shall include, but not be limited to, providing advice and feedback to the chief administrative magistrate of the division of administrative law appeals, the director of special education appeals and the commissioner of elementary and secondary education with respect to the bureau's performance in providing for the fair and timely resolution of disputes under federal and state laws governing special education, matters related to the memorandum of understanding entered into by the chief administrative magistrate and the commissioner with the input of the director, compliance data, the range and types of alternative dispute resolution mechanisms, mechanisms and resources for providing trainings, hearing and mediation data, mechanisms for improving access for pro se parents and outreach to families who are non-English speaking and mechanisms to ensure that the bureau is appropriately maintained and operated both as a separate subdivision of the division and independent of the department.